As part of our pro bono week coverage, we looked into what makes a leading pro bono law firm, and what practices those conducting such work should avoid. We spoke to Rebecca Wilson, pro bono & public legal education policy advisor at the Law Society, Tom Dunn, pro bono director at Clifford Chance, Stephanie Biden, partner in the Charity & Social Enterprise team at Bates Wells Braithwaite (BWB), and Mark Mansell, partner at Allen & Overy (A&O).
Accomplishing pro bono work: City firms vs legal aid firms
Rebecca Wilkinson said that city firms have in the past focused on providing pro bono support predominantly to charities and NGOs, with submissions to the Law Commission from eight of the largest commercial firms in the City showing social welfare law makes up around 10% of the firms’ total pro bono work. ‘However, in recent years they have begun to increase the pro bono support they offer individuals through free legal advice.
‘Larger firms will often coordinate their pro bono work through a pro bono manager or a committee, in accordance with a pro bono policy or strategy for the entire firm.’
Mark Mansell said that innovation is paramount in larger firms’ pro bono work, as it is when working with fee-paying clients. ‘Over the past year, we have also been trying to help address unmet legal need outside of London. Working with Central England Law Centre and Coventry University, we have piloted a pro bono telephone employment advice line which has helped the Law Centre to triple the amount of clients assisted.
‘While it is important for us to explore these innovations, there is still significant unmet legal need which requires specialist expertise and pro bono work cannot fill this gap.’
Tom Dunn says pro bono work in big firms usually falls within a CR or responsible business strategy. ‘Pro bono is generally seen as the principal way in which a big firm can make a useful social contribution in the communities in which they are located, contribution to the community being a staple objective of most CR/responsible business strategies.
‘Big firms generally do pro bono work either by giving free legal advice using the infrastructure of local community based advice organisations to local people who otherwise would not be able to afford to get the advice, or by giving free legal services to NGOs to help enhance their capacity to achieve their social missions.’
Regarding legal aid firms, Tom Dunn notes such firms are funded by government to provide legal services within certain areas, generally within social welfare law, to people who meet a means and merits test, and are not acting pro bono. ‘It is important to understand this distinction. Confusion can arise because of the way the term is used (differently) in the US, where legal aid services refer to free legal advice delivered by NGOs to the least well-off, which corporate lawyers often contribute to on a pro bono basis.
‘There is, though, a sense in which legal aid lawyers do pro bono work, which is that often they work more hours on a case than they then get paid for, particularly following LASPO. Legal aid lawyers do not usually time record this as pro bono work because to do so would require software and resources they generally don’t have, so this contribution is generally not captured.
‘It would be a good thing to capture, in my view not only to recognise the enormous contribution pro legal aid lawyers make, but also because it would make the point very clearly that the legal aid cuts mean that often legal aid lawyers are not paid sufficiently to do all the work that is required on a case.’
What it means to be a ‘leading’ pro bono firm
Tom Dunn argues it is difficult to say what qualifies a leading pro bono firm. ‘There are a group of city firms who are generally regarded as being leading, often by dint of how long they have been doing pro bono in a serious way, the hallmarks of which include having dedicated resource, have a strategic focus to what they do, and making some effort to measure the impact of what they do. How many hours they do is also a relevant indicator.’
Rebecca Wilkinson agrees that pro bono output is a factor associated with leading firms, as is the infrastructure within the firm. ‘For example, whether they have a pro bono manager, the breadth of projects they engage in, and what percentage of their solicitors participate in pro bono projects. However, firms will also be assessed on the role they play within their local community, their engagement with third sector organisations, and their willingness to engage in the wider “pro bono sector”.
‘It is a “competition” of peers, as there is no agreed mechanism for evaluating and monitoring pro bono across the board. This is one of the reasons that we have developed the Pro Bono Charter and Manual, so that as a profession we start to coordinate, measure, evaluate and report on the pro bono work we do – we have a lot of unsung heroes in the profession.’
Stephanie Biden says pro bono work should be targeted according to the areas of greatest need and where lawyers’ skills and expertise can have the most impact. ‘It is an area where law firms are often more collaborative than competitive.
‘BWB is particularly keen to help early stage projects which we feel will achieve significant social change over the longer term and which would not succeed without pro bono support.’
How firms get recognised
Mark Mansell says that it is important lawyers are properly recognised for their contributions, with pro bono ‘stars’ publically thanked and nominated for awards. ‘Within the firm, pro bono hours count towards fee-earner billable hours targets and pro bono contributions are discussed as part of our annual performance reviews.’
Rebecca Wilkinson also speaks about the awards firms can participate in, including the Law Society Annual Pro Bono Excellence Award and the annual LawWorks pro bono awards. ‘Firms can also become signatories to the Law Society pro bono charter which demonstrates a commitment to best practice pro bono.
The Law Society and Law Society Gazette both publish case studies about the pro bono work of firms from across the country. Some pro bono work may be of interest to local or national news, although of course this has to be handled very sensitively with clients on a case by case . For instance, some of the Hillsborough families received dedicated pro bono advice over many years and this received national coverage. When considering whether to promote pro bono work, clients’ interests and wishes are paramount.’
Stephanie Biden agrees that there are several awards programmes which recognise pro bono contributions by firms or individual lawyers, though adds that high profile pro bono cases may also attract media attention. ‘One of our recent pieces of pro bono work involved BWB’s employment team representing Margaret Dewhurst in her successful campaign to secure paid holiday and minimum pay from courier firm CitySprint. The case has significant implications for employment in the “gig economy” and was covered extensively by national and trade media.
‘Most recently, the same team have been instructed by Mr Yaseen Aslam and James Farrer, the lead Claimants spearheading a class action against Uber. The action, which has garnered significant media attention, was heard at the Employment Appeal Tribunal on 27/28 September 2017 and will decide whether Uber must accord its minicab drivers “employed worker” status.
‘The TrustLaw Pro Bono Index recognises the amount of pro bono work being undertaken by firms and the level of engagement which each firm has (in terms of how many lawyers participate and at what level of seniority).’
Practices to avoid in pro bono work
Mark Mansell argues that firms’ professional obligations should be taken extremely seriously. ‘At A&O, we believe it is essential to treat our pro bono clients in just the same way as our fee-paying clients. Deadlines must be met and adequately qualified staff must be involved. Pro bono work can be a great way for junior lawyers to gain experience, but we are careful to ensure that they are properly supported in their cases.
‘Law firms can also offer so much more than pro bono legal work–given that a large proportion of staff are not fee-earning lawyers. We actively encourage our support staff to be involved in volunteering and community investment activities and provide opportunities for everyone to use their skills. For example, we rely on the input of over 150 staff members from a range of specialisms to run the Smart Start Experience, a work experience programme for young people from non-privileged backgrounds, which we hold every summer. Earlier this year,we were awarded the Queen’s Award for Enterprise in the category of Promoting Opportunity through Social Mobility, recognising our contribution to broadening access to the legal profession through initiatives such as this.’
All firms are encouraged to sign up to the Law Society’s Pro Bono Charter to ensure they are carrying out their pro bono to a suitable standard. The most important thing is that all pro bono work is governed by the same professional standards as regular paid work.
Tom Dunn argues that doing pro bono work that comes in through personal connections to the firm is not consistent with a strategic focus on particular social outcomes. ‘Not doing the work to the same standard as fee-paying work is another.’